There's been a dramatic increase in the number of civil rights complaints made to DOE's civil rights division over the past five years, which has doubled the burden on the attorneys and investigators charged with assessing these claims. As a result, unresolved cases abound. To remedy this, DOE Office of Civil Rights is asking for more money for more staff. WaPo's Lyndsey Layton reports:

Complaints of discrimination to the department have soared from 6,364 in fiscal 2009 to a record of 9,989 in the most recent fiscal year. [DOE Secretary for Civil Rights Catherine] Lhamon expects another record to be set when the current fiscal year ends in September. It is a sign that “we have the trust of the national community bringing to us their deepest hurts and asking for resolution,” she said.

The agency does not open an investigation into every complaint; some are quickly dismissed because they fall outside of the jurisdiction of the office, Lhamon said. She could not say what percentage of cases are dismissed but noted that even when a complaint is discarded, it is still time consuming because an investigator must make a determination.

In its budget proposal for next year, the Department of Education is seeking $131 million for its Office for Civil Rights, an increase of $30.7 million, so it can hire an additional 200 lawyers and investigators. That would be in addition to its current staff of 554 employees.

Lhamon said that without the additional employees, the current staff will continue to strain under growing caseloads and it will take longer to resolve complaints. The backlog of cases that have been pending for longer than 180 days has doubled during the past five years from 315 to 630....

She said there was no single category of grievance that accounted for the rise in complaints. But a breakdown of agency statistics show that the category of sex discrimination has grown from 391 in 2010 to 2,354 in 2014. Discrimination based on disabilities make up the largest category, or 39 percent.

Sex discrimination comprised 24 percent of total complaints. Lhamon said two individuals were responsible for filing more than 1,700 of those allegations of sex discrimination. She declined to identify them, citing confidentiality requirements.

Agency officials and outside observers point to a key action by the Obama administration that probably triggered the increase in sex discrimination complaints. In 2011, the Office for Civil Rights issued guidance to that said sexual harassment of students, including acts of sexual violence, is a form of sex discrimination prohibited by Title IX of the Education Amendments of 1972. Up until that point, Title IX was commonly understood to ensure equal opportunity for girls and women in athletics and other educational programs and activities.

The title of this post comes from this paper arguing that student free speech rights under the First Amendment have been receiving less protection than the standards articulated in Tinker v. Des Moines Independent School District. Here's the abstract:

The 2007 Supreme Court decision in Morse v. Frederick threatens the protection of student free speech that was articulated by the Court almost forty years earlier in Tinker v. Des Moines Independent Community School District, the decision in which the Court famously expressed that “students do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

In Tinker, the Court applied the substantial disruption standard, essentially that school officials cannot restrict student speech because school officials disagree with it, but rather, that school officials can restrict content-based student speech only when it could be reasonably forecast that the speech would cause a substantial disruption to the school.

In Morse, the Court upheld the actions of a school principal in demanding students at a school event to take down a banner that read “BONG HiTS 4 JESUS,” and in suspending a student who refused. The Court ruled in favor of the school principal but not by applying Tinker’s substantial disruption standard. Rather, the Court found that school officials may restrict student speech that can reasonably be understood as promoting illegal drug use because protecting students from the dangers of illegal drug use is an important interest.

Although the opinion of the Court applies directly only to student speech encouraging illegal drug use, some lower courts are using the reasoning in Morse to analogize student speech encouraging illegal drug use to other areas of speech, thereby restricting speech that school officials believe students need to be protected from hearing. Thus, speech is restricted even when it would not be reasonable to think that it would cause a substantial disruption. The result is that speech is restricted essentially because school officials disagree with it, the very thing that the Court in Tinker tried to protect students from.

Justice Alito, joined by Justice Kennedy, wrote a concurring opinion in Morse precisely because of the concern that Morse would be read more broadly than applying only to student speech encouraging illegal drug use. This Note sets forth why courts should read Alito’s concurrence as controlling the limits to Morse, as well as other reasons why Morse should be read narrowly.

An en banc 9th Cir. recently ruled that two Sonora, Calif. PD officers used excessive force when they handcuffed an 11-year-old who hadn't followed his teacher's instructions during recess, reports Education Week's Mark Walsh. Worried that the child might run off, the school called police when the boy didn't respond to the physical education teacher's attempt to get him back inside the school. The responding officers placed the cuffed boy in the back of the police car and took him to his guardian. According to the court:

It is beyond dispute that handcuffing a small, calm child who is surrounded by numerous adults, who complies with all of the officers' instructions, and who is, by an officer's own account, unlikely to flee, was completely unnecessary and excessively intrusive.

The court found, however, that the officers were immune from allegations that they'd violated the child's Fourth Amendment right against unreasonable seizures.

We should examine how and how much testing we do... But we should always be conscious that we still have a country and a society that is rife with inequity and injustices, and until the time when we can assure every family of an equal opportunity to achieve an excellent education, we must commit to an annual measurement of our delivery of an education so that we can lay bare the honest truth as to whether or not we succeeded in educating every child.

The value of testing, at its essence, is that it tells the truth and that is a civil rights issue first and foremost and should not be forgotten by anyone[.]

In the aftermath of several highly-publicized incidents of school violence, public school officials have increasingly turned to intense surveillance methods to promote school safety. The current jurisprudence interpreting the Fourth Amendment generally permits school officials to employ a variety of strict measures, separately or in conjunction, even when their use creates a prison-like environment for students. Yet, not all schools rely on such strict measures. Recent empirical evidence suggests that low-income and minority students are much more likely to experience intense security conditions in their school than other students, even after taking into account factors such as neighborhood crime, school crime, and school disorder. These empirical findings are problematic on two related fronts. First, research suggests that students subjected to these intense surveillance conditions are deprived of quality educational experiences that other students enjoy. Second, the use of these measures perpetuates social inequalities and exacerbates the school-to-prison pipeline.

Under the current legal doctrine, students have almost no legal recourse to address conditions creating prison-like environments in schools. This Article offers a reformulated legal framework under the Fourth Amendment that is rooted in the foundational Supreme Court cases evaluating students’ rights under the First, Fourth, and Fourteenth Amendments. The historical justification courts invoke to abridge students’ constitutional rights in schools, including their Fourth Amendment rights, is to promote the educational interests of the students. This justification no longer holds true when a school creates a prison-like environment that deteriorates the learning environment and harms students’ educational interests. This Article maintains that in these circumstances students’ Fourth Amendment rights should not be abridged, but strengthened.

A teacher in Virginia has sued school officials for civil rights violations following an alleged strip search. According to her complaint, after the parent of one of her students reported a child with scabies, the assistant principle interrupted the teacher's class and escorted her from her classroom to the nurse's office where she was forced to remove everything but her undergarments. The nurse looked her over, but found nothing. The teacher then "returned to her class to continue teaching though very upset." According to the Courthouse News service:

"Because a parent or guardian of the student made an unsupported allegation, with no rational connection to the plaintiff, the defendants responded with an intrusive search," she says in the lawsuit. "The search was unjustified at its inception, and the nature of the search as conducted - removing Ms. Anderson's clothes to inspect her body for mites - was not reasonable to the perceived or alleged problem in its scope, and unsupported by any objective facts."

Anderson, who says she suffers from severe mental anguish and embarrassment from the search, seeks $622,000 in damages.

The Texas Observer reports that several groups want schools to eliminate the use of Tasers and pepper spray on students, which seems like an entirely reasonable request. Since 2001, more than 500 people have died after having been tased. The Observer article states:

Last week, a group of civil rights organizations including the ACLU and the Texas Criminal Justice Coalition called on Texas Education Commissioner Michael Williams to ban the use of Tasers and pepper spray on schoolchildren, citing the recent severe injury of a Cedar Creek High teen as an example of the devices’ potential to inflict serious damage.

Within the Texas juvenile justice system, guards are banned from using Tasers on young offenders. But in public schools, “resource officers” are allowed to use the devices—along with pepper spray—at the discretion of local school boards.

“Texas families deserve to send their children to school without fear, knowing they can trust their schools to be safe havens,” the letter reads. “Emitting a shock of up to 50,000 volts, Tasers are designed to restrain adults. They simply should not be used on children.”

Williams’ office responded Thursday that it doesn’t have the “statutory authorization” to impose a ban on the weapons, noting that the authority lies with local school districts and charter school boards.

“That is a conversation that has to take place among local elected officials,” he said in a statement.

Last year the same coalition of civil rights groups called on the Texas Commission on Law Enforcement to enact a ban on the “non-lethal” devices, and were met with a similar response. Commission officials, however, vowed to work with the criminal justice groups in providing specialized curriculum for school police officers. TCLOSE only requires school security to meet the “minimum standards” of peace officers as established by the Texas Education Code—generalized training that is not specific to dealing with minors.

John Helenberg, director of operations at the law enforcement commission, said the agency is forming an independent committee of “experts across the state from various law enforcement agencies,” to take a closer look at how peace officers should use force in schools. That review will begin in March, Helenberg said.

Texas Appleseed and the ACLU examined the policies of 18 school districts in the state which volunteered to supply data; the use of pepper spray was prevalent throughout. The 2011 ACLU study also revealed the use of other weapons among the school districts: Killeen ISD listed police batons as one option; El Paso ISD reported using police dogs. Two Houston school districts recently began using “pepper guns,” which are more accurate than pepper spray.

The tactics used to restrain students are also determined independently by each school district and vary widely. Austin ISD officers use “soft empty-hand control” techniques when a student doesn’t respond to two verbal warnings, whereas Tyler ISD officers report using pepper spray after the student’s third failure to comply.

In 2009, several Hillcrest High students in Dallas were given medical treatment for exposure after an officer used pepper spray to break up a fight. Despite these injuries, information on force used against students and the types of implements officers wield is difficult to obtain because there are no legislative mandates requiring schools to report that data to the state. A Taser International spokesman told the Los Angeles Times in a 2009 article that “‘well over 4,000” law enforcement agencies nationwide use their product in schools.

The Eureka County, California school district has a problem, according to a recently filed lawsuit by the ACLU. The lawsuit alleges that the district has intentionally discriminated against minority students by ignoring repeated physical and verbal abuse by teachers and other students. According to this North Coast Journal article, the lawsuit alleges that "a teacher once told students that 'black people get bored easily' and ordered a teenage girl, 'Don't give me your black attitude[.]'" It further reports:

[Native American cultural] history is neither understood nor respected in Loleta or Eureka, according to the complaints. Last spring at Eureka High, Alexis R.'s history teacher asked students in her class to raise their hands if they were Native American, according to the lawsuit against the district. When Alexis R., who is Yurok, raised her hand, the teacher allegedly asked her to explain the 1860 massacre on Indian Island in Humboldt Bay, which was perpetrated on an entirely different tribe, the Wiyot.

Another Eureka High teacher allegedly "had her history students 'make up' different Native American tribes and then pretend to fight each other" because, according to her, "this was how Native Americans traditionally resolved conflict between their communities," the lawsuit states.

The suit also claims that Eureka City Schools administrators have "routinely" refused to excuse Alexis' absence "to participate in vitally important Yurok cultural activities, including community brush dances, funerals, and salmon fishing."

The superintendent claims that parents have not complained about discrimination prior to this lawsuit, which, of course, is contested by the plaintiffs who apparently have documented many such complaints made to school administrators. He further asserts that parents failed to follow the official complaint process, the details of which are displayed in all classrooms.

In any case, schools assume some of the responsibilities of parents during the school day. In Vernonia Sch. Dist. v. Acton, the Supreme Court said, "When parents place minor children in private schools for their education, the teachers and administrators of those schools stand in loco parentis over the children entrusted to them. In fact, the tutor or schoolmaster is the very prototype of that status." In this role, administrators' utmost concern must be the students. As such, administrators ought not be justified in dismissing parents' complaints simply because of minor procedural deficiencies; by doing so, administrators ludicrously neglect the duty to protect students for whom they have assumed responsibility. If their role can be shirked so easily, perhaps its time to rethink the deference commonly given to them by courts.

This is not about demanding more from school districts, its about demanding the bare minimum.

The article begins:

Brianna sits at her kitchen table, surrounded by manila folders spilling notes she's taken about her struggles with the staff and administrators of Zane Middle School over the treatment of her 13-year-old daughter Jessica.

"This is not a black or a white thing," says the lanky, kind-eyed single mom who works full time, coaches her daughter's volleyball team and says she never expected to be a plaintiff in a discrimination lawsuit against her daughter's school district.

The notes document a year and a half of merciless bullying — students calling Jessica "nigger," "hooker" and "whore," shoving her head inside a locker, smearing her face with makeup and tripping her in the hallway. Calendars made with Excel spreadsheets and printed on computer paper are filled with notes about emails sent, phone calls made and meetings attended as Brianna tried to get the harassment to stop. Eventually she came to the conclusion that it wasn't going to stop because the school's administrators simply weren't taking the problem seriously.

So Brianna started working with the American Civil Liberties Union of Northern California, which began investigating racism and sexism at Eureka City Schools about a year ago following a call to its complaint hotline from a grandma who was desperate to help her bullied grandson.

On Dec. 18, the ACLU, in conjunction with the National Center for Youth Law, filed a federal civil rights lawsuit alleging "years of intentional discrimination" by the Eureka City Schools District, discrimination based on students' race, sex and disability status. In a 51-page complaint submitted to the U.S. District Court in San Francisco, lawyers for the two groups outline "a racially and sexually hostile environment" at the district's schools, which include four elementary schools, two middle schools and two high schools. The suit alleges that staff and administrators discipline minority students more harshly than white students, make racially ignorant and sexually offensive comments in class, offer curriculum that affronts or ignores cultural history, and fail to prevent widespread racial and sexual bullying.

Constitutional protection of student speech has been a mixed blessing. There is still something quite inspiring about the notion that young people have worthwhile thoughts to share, and that the Constitution guarantees their right to do so. At the same time, courts have struggled to figure out what limits on student expression should be permitted, and much of the litigation has involved student speech that is disappointingly mindless. The Supreme Court’s seminal ruling in Tinker v. Des Moines Independent Community School District concerned students who wore armbands to express a serious message about an important national issue. Judges and school officials understandably may struggle to keep a straight face when asked to apply the same legal standards to claims that the First Amendment entitles a student to wear a shirt expressing his interest in “Coed Naked Band” or being a “Redneck sports fan.” Treating the intellectual seriousness of a student's expression as a significant factor in the constitutional analysis would make the right to free expression stronger in those situations where student speech truly makes a valuable contribution to a school’s ultimate goal of training young thinkers. It would encourage students who want to communicate controversial messages to do the work necessary to establish that they have a sincere understanding of the issues involved and are not just eager to complain and defy school authorities. And it would simultaneously help to shift responsibility for application of student speech rights away from federal judges and toward school teachers and administrators. In all of these ways, it would ultimately solidify the constitutional protection of student speech and help to fulfill the noble promise of decisions like Tinker.

The ACLU has filed a lawsuit on behalf of a seventh-grader who has been denied permission to start a gay-straight club at her middle school. The school district claimed the club didn't "promote critical thinking, business skills, athletic skills, and performing/visual arts," as required by its rules. The article begins:

The Lake County [Florida] School Board for the second time this year is facing a federal lawsuit accusing it of violating students' freedom of speech and federal rights by not allowing a middle-schooler to start a gay-straight club at her school.

The American Civil Liberties Union Thursday filed a federal lawsuit on behalf of a 12-year-old girl at Carver Middle School in Leesburg who applied this semester to start a Gay-Straight Alliance club but was denied by school district officials.

The ACLU says seventh-grader Hannah Faughnan filed an application to start the club in October but was denied by the district's administration chief, according to the federal complaint.

According to the ACLU, the club would fight against bullying, discrimination and harassment of students including those who are gay, lesbian, bisexual or transgender.

District administration chief Aurelia Cole, however, left a handwritten note on Hannah's application saying that the club "is not an extension of the school curriculum, per policy. Not approved."

A CRL&P reader recently brought to my attention the Tinker Tour, an ongoing event by the Student Press Law Center to educate students about their First Amendment rights. The tour commemorates the 1969 Supreme Court decision in Tinker v. Des Moines Independent Community School District, 393 U.S. 503, in which the court affirmed the First Amendment right of high school students to wear black armbands in protest of the Vietnam War.

The Tinkers were among five Des Moines students suspended in December 1965 for wearing the black armbands.

The siblings received hate mail after their 1965 suspension. The window of the family car was shattered by a brick. Someone threatened to bomb their home. But with the help of American Civil Liberties Union attorney Dan Johnston, they continued to fight for their rights.

After attempts to repeal the decision were shot down by the local school board, the Tinkers, along with then-16-year-old Roosevelt High School student Christopher Eckhart, took their case to court.

The resulting 7-2 U.S. Supreme Court decision guaranteed that students today have the right to express their opinions without fear, said Mike Hiestand, an attorney with the Virginia-based Student Press Law Center, a sponsor of the Tinker Tour.

Tinker is particularly interesting for what the case says--or doesn't say--about what expressive conduct qualifies as speech under the First Amendment, which, of course, depends on context. Writing for the Court, Justice Fortas found "that the wearing of an armband for the purpose of expressing certain views is the type of symbolic act that is within the Free Speech Clause of the First Amendment"; the wearing of the bands "was closely akin to 'pure speech.'" Ibid. at 505. Specifically, the Court observed that the students wore the "black armbands...to exhibit opposition to this Nation's involvement in Vietnam" at a time when the justness of that involvement was being hotly debated. Ibid. at 510-11. ("They wore [the armbands] to exhibit their disapproval of the Vietnam hostilities and their advocacy of a truce, to make their views known, and, by their example, to influence others to adopt them." Ibid. at 514. ). "[W]e do not confine the permissible exercise of First Amendment rights to a telephone booth or the four corners of a pamphlet," wrote Justice Fortas. Ibid. at 513.

CRL&P readers know that I believe that the right to vote ought to be protected First Amendment speech. The Tinker case is another example of protected expressive activity that does not materially differ from public voting.

Although voters today choose candidates on the basis of a complicated set of policy issues, this certainly was not the case in the American colonies and the early American Republic. In Voting in Provincial America, Robert J. Dinkin emphasizes "the major concerns of the state were confined to providing defense against external enemies and keeping internal order." As such, the task of voters "was to choose from among rival candidates the men he believed to be the best leaders[.]"

At that time, voting itself had persuasive value. As Richard R. Beeman describes in his book The Varieties of Political Experience in Eighteenth-Century America, viva voce voting commenced with the most prominent men voting first. As such, candidates hoping to win elections would court these men in hope that their support on Election Day would convince voters down the line to support them. George Washington learned this lesson the hard way, losing his first election badly. But, he changed his strategy, and several years later won a seat in the House of Burgesses. As Beeman wrote: "The strategy of marshaling a prominent display of support early in the election was, at least in this case, highly successful, as Washington raced to an early lead that only grew as the day wore on."

Public voting evinced voters' support for candidates and parties, and such practices continued until the end of the 19th century. The Court has granted First Amendment protection to similar expressive acts, as it did in Tinker. Now, the Court ought to extend such protection to the right to vote as well.

Officials in one Michigan school district have reversed their decision forbidding students to wear T-shirts honoring a classmate who recently died of leukemia. School administrators originally had told the students that they could not wear the shirts because of the emotional impact--the shirts might have exacerbated the grief felt by some students. But, students and parents complained, and the school district acquiesced.

The article begins:

A southern Michigan school district has reversed its decision to bar students from wearing T-shirts honoring a 12-year-old classmate who died over the weekend following a long battle with cancer.

At least a dozen students showed up to Lakeview Middle School in Battle Creek on Monday wearing blue or orange T-shirts to honor sixth-grader Caitlyn Jackson, who died Saturday after fighting leukemia for years, the Battle Creek Enquirer reported[]. Blue was Caitlyn's favorite color and orange is worn to honor those like her with leukemia, and some of the shirts were from various benefits for Caitlyn over the years.

When students arrived at school, administrators asked them to change out of the shirts, turn them inside-out or tape over Caitlyn's name.

Notably, district officials originally justified the prohibition under measures created to deal with crises. As the Associated Press reports:

[The school's finance director] said the district decided Sunday to not allow the T-shirts in keeping with its crisis management plan, which bars permanent memorials on the belief that they can remind students of their grief and make it worse. Parents weren't informed of the decision.

I doubt that student-made T-shirts qualify as "permanent memorials" (although a more pointed definition of the terms might be necessary), and I question the virtue of the district's policy.

Schools not only teach intellectual skills, but they also serve to socialize students for future integration into society and the workforce. Dealing with grief and loss are necessary components of that socialization process.

Further, emotionally trying experiences often are not private matters. Many people will have to deal with the loss of a co-worker or a classmate. Natural disasters often disrupt whole communities; and, as the 9-11 attacks demonstrated, the pain and trauma of a single event can significantly impact entire regions, even the country.

After completing primary and secondary school, students hopefully have developed the intellectual and emotional skills to manage their future education and/or careers even in difficult circumstances. I find it difficult to believe that ignoring grief is the best way to prepare students for that eventuality.

Moreover, the administrator's ban on the shirts likely violated the First Amendment speech rights of the students who wore them. Some students certainly feel grief due to the death of a classmate, but the T-shirts probably do not detract from their educational experiences.

Sorrowful students will continue to feel the attendant pain of losing a friend. But, the now-empty desk creates that sadness. Not the T-shirts.

The "I ♥ Boobies!" bracelets are heading to the Supreme Court! Indeed, after the Third Circuit ruled it could not ban the bracelets, a Pennsylvania school district has voted 7-1 to appeal the decision. The district claims that the ruling compromised the disciplinary authority of the school. I wonder, however, whether that authority has been so weakened so as to justify the district's expenditure of taxpayer dollars to continue the fight. No matter, at least the district's students are having the opportunity to learn about the First Amendment.